The Buff

OLD STORY SAME STUFF!!!Breaking Down the OPO Ordinance

I thought it might be a good idea to provide some perspective from someone who has been there done that to Nicholas Deshais “Sirens & Gavels” story of October 22, 2015 so I picked out a few portions of the OPO Ordinance and made some observations. The ordinance by the way is the same language in the Guild Contract negotiated by Mayor Condon and Frank Straub which was later approved by the City Council. This piece should provide citizens a clue where the SPD Guild and their legal team was coming from when they tore Prop 1 to shreds in the negotiations with the City.

*“OPO Involved Investigation” means an IA investigation where the complaint giving rise to the investigation, whether made to the police department or the OPO, is a complaint of a serious matter (complaints that could lead to suspension, demotion or discharge) involving allegations that an employee either improperly used force or improperly/inappropriately interacted with citizens.

The definition of exactly what constitutes an “OPO Involved Investigation” seems clear but is it? The OPO is limited to investigations “involving allegations that an employee either improperly/inappropriately interacted with citizens” which “could” lead to suspension, demotion or discharge.

Does this mean where “interaction with citizens” was not involved, for one example an allegation of a Patrol or Detective unit being parked at a residence or secluded area for an extended period of time, the OPO is prohibited from being involved?

This section deals with preliminary OPO investigations which are cases where an individual makes an allegation directly to the OPO and not to the SPD.

*If the complainant is an officer, the OPO may request an interview from the complainant officer as part of the preliminary investigation.

The key words here are “may request an interview”. Who does the OPO make a request to? Presumably to the Chief of Police who may or may not grant the request.

*If the OPO determines that the complaint should not be forwarded to IA, the OPO may publish a closing report, which states the allegations of the complaint and the basis for the OPO’s determination that the complaint did not need to be forwarded to IA neither this closing report nor the preliminary investigation shall be used for discipline; the closing report and any part of the preliminary investigation that is released shall not reveal the names of the officers involved.

In other words an OPO “preliminary investigation” which the OPO does not believe necessary to forward to IA “shall not be used for discipline and officers names shall not be revealed to the public. The problems with this requirement are clear. The integrity of the Ombudsman must be beyond reproach.

Does this requirement forbid the use of a non-forwarded OPO Preliminary Investigations from being used or considered in subsequent investigations which allege the same or similar conduct and would help to establish a pattern?

*The OPO will not act upon complaints concerning events that occurred more than one year prior to the filing of a complaint. The OPO will not conduct separate disciplinary investigations, but may participate in all OPO Involved Investigation interviews and request that further investigation be conducted by IA as provided herein.

This statute of limitations clause clearly prohibits the OPO from even acting upon any complaints involving events taking place more than a year prior to the complaint.

Just think of an individual finally overcoming a fear of reporting going into the OPO’s office trying to report serious misconduct and being told the OPO is prohibited from acting upon the complaint.

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This section deals with the handling of both IA and OPO Complaints.

*Once any complaint is received by IA, including those forwarded to IA from the OPO, it shall be submitted to the chain of command for review per existing police department policy. When either the chief or his or her designee determines that the allegations warrant investigation, such investigation shall be approved, and IA will initiate the investigative process. The OPO will participate in that investigation process for OPO Involved Investigations as follows:

This wording again limits participation by the OPO to “OPO Involved Investigations” the definition of which seems to limit those investigations to “interactions with citizens”. I would assume the Guild legal team anticipate that this wording would allow an officer to demand that the OPO have no involvement in a case that does not specifically and clearly involve “interaction with a citizen”.

*Internal affairs will notify the OPO of all administrative interviews on all OPO Involved Investigations. The OPO may attend and observe interviews in person or by telephone and will be given the opportunity to ask questions during the interview and after the completion of questioning by the department. The OPO will not participate in criminal investigations of department employees, but will be notified when the criminal investigation is concluded.

It is important to note that this wording specifically prohibits OPO participation in “criminal investigations of department employees”. In other words in the case of an Officer Involved Shooting during the criminal investigation phase the OPO is prohibited from participating. This could also become problematic depending upon how SPD deals with COPS/DOJ Recommendation 8.1.

*As a part of the review process, the OPO may conclude that further investigation is needed on issues deemed material to the outcome. The OPO will notify IA of the suggested further investigation. The OPO’s suggestions and rationale for further investigation will be provided to IA in writing. The OPO and assigned investigator(s) will discuss the suggested further investigation and attempt to reach an agreement. If there is no agreement between the assigned investigator(s) and the OPO regarding the necessity, practicality, or materiality of the requested further investigation, the OPO will notify the chief (or designee) in writing of the OPO’s suggestions and rational for further investigation. The chief (or designee) will determine whether further investigation will be undertaken by IA. The chief (or designee) will provide his or her determination to the OPO in writing.

It is important to understand that once an OPO has concluded that an IA investigation is either not timely, thorough, or objective this is the first set of several hoops the OPO is required to jump through.

I suppose at some point someone will have to decide exactly what “issues deemed material to the outcome” are and the argument over that issue will likely continue throughout the entire process.

The OPO is required to submit in writing the rationale for further investigation by IA which I would assume must establish which aspects are “material to the outcome”.

The OPO and IA meet and battle out whether or not the OPO further investigation request meets the requirement of “necessity, practicality, or materiality”.

If IA and OPO don’t agree, the OPO must go to the Chief of Police with the request who is required to say yes or no in writing.

How long do you think this process will take?

*If the OPO is not satisfied with the determination of the chief, the OPO’s request for further investigation may be presented to the commission, whose decision will be final. The decision of the commission will be based upon the OPO’s written request and the chief’s (or designee’s) written response. Once the matter has been referred to and resolved by the commission, the IA investigation will be completed consistent with the determination by the commission on the OPO’s request.

When the Chief says no, the OPO takes it to the OPOC who review it and decide if IA must reinvestigate or not.

Okay at this point we have two or possibly three public documents in possession of the OPOC, the OPO document to IA, possibly a document from OPO to the Chief, and the Chief’s denial of the OPO request. The obvious question with respect to transparency is whether or not these documents will be made public. Will the OPO make the case to the OPOC in an open or closed meeting and when, at regular meetings or closed special meetings?

*After providing IA a reasonable opportunity to complete the further investigation, if the commission determines and specifically describes in writing how the IA investigation was not completed consistent with the commission’s decision, the commission may again direct IA to complete the further investigation in the OPO’s request, or the commission may publish a report stating what further investigation in the OPO’s request the commission believes was not completed by IA.

If the OPOC doesn’t get what they want from IA they can give IA a second chance.

Or they can just say the hell with it, write and publish a report saying what a rotten job IA did.

So we are this far along does anyone care to guess how long this part of the process has taken?

The infamous “Independent Investigation”.

*If the OPO has not yet made a certification decision, a certification decision shall be made by the OPO. In addition to its report, the commission may direct the OPO or a third-party investigator to complete the further investigation requested by the OPO

Now we are at the point where the OPO after jumping through the previous hoops decides not to certify the IA investigation so the often misidentified “Independent Investigation” kicks in.

*; however, no such investigation may commence until the Chief has made a final, written discipline determination in the matter.

This happens to be one of my favorites. With all the talk from Condon, Straub, and the City Council about how great the OPO and OPOC oversight is, the crux of the matter is right here in the nineteen words above.

A public employee cannot be disciplined twice for the same incident. So the OPO and the OPOC having jumped through all the hoops to this point have to wait for the Chief to discipline the officer so that any more investigation of the complaint won’t subject the officer to further discipline.

*If the commission contracts for a third-party investigation, it shall be conducted by someone with knowledge and experience in conducting a fair and objective law-enforcement investigation and who has no conflict of interest. The OPO or third-party investigator may request, but not require, participation by police officers in the investigation.

This is my second favorite because it provides the real picture as to the infamous “Independent Investigation” issue.

We are now probably several months into the process and the OPOC gets to decide if they want to let the OPO conduct an investigation, or spend the money to hire a third party.

The key to conducting an administrative investigation of public employees is having the ability to requiring them to talk under Garrity protections. The language here specifically forbids the OPO or a Third Party from forcing cops to talk, they can ask but the language is clear they can’t require.

The language is so clear that it appears even if cops were directed by the Chief to talk to the OPO or Third Party he can’t require them to talk because of the specific language in this ordinance which is exactly the same as the Guild Contract.

The question obviously is how anyone can conduct a thorough, and objective administrative investigation when you are prohibited from interviewing all of the witnesses and especially those witnesses who in most cases are primary witnesses.

*Once the OPO or third-party investigator has completed the OPO requested investigation, the Commission may publish a report of the results of the investigation of the OPO or third-party investigation, so long as the report does not identify specific members of the department and does not in any way comment on officer discipline (or lack thereof).

So after the “Independent Investigation” is completed the OPOC can write a report but are specifically prohibited from telling the public two key factors the names of the cops involved and whether or not they feel the discipline the Chief already gave the cops was BS.

That’s transparency no doubt about it…right?

*The further investigation and/or the commission’s report may not be used by the City as a basis to open or re-open complaints against any bargaining unit employees, including those assigned to IA, or to reconsider any decision(s) previously made concerning discipline. No discipline of bargaining unit employees may result from the OPO or third-party investigation.

Pretty plain language, after all the time, money spent, and countless hoops the OPO and OPOC have had to jump through the “Independent Investigation” or the OPOC report regardless of what was found cannot be used to open or re-open “complaints” against cops including IA cops. The discipline handed out by the chief cannot be reconsidered.

So after all this what the hell good is it and is this even close to the City Charter.